Land RightsAN EVOLUTION FROM DISPOSSESSION TO ACKNOWLEDGEMENT AND EMPOWERMENT

Different Perspectives

of Land • People belong to the land

• Land is sacred and must be cared for

• Generally communal ownership of land, however

• Many different views in different areas• The access to food effects how nomadic groups

are. E.g. Torres Strait very settled with fences and inheritable land rights• When the natural resources of an area began to

run low, Aboriginal people moved on to the next place. • There is evidence of fish farming, managing the

bush by burning to create regeneration and the passing of knowledge of land from the elders in initiation corroborees and rights of passage.

• Land belongs to the people who bought it

• The land must be used (farmed) or it is lost

• Individual property ownership is the centre of the legal system• Land can be inherited, bought and sold• Ownership of land is a sign of wealth• Land can be owned by Companies as if

the company was an individual.

Fish Farming/Fences Burning for regeneration

English laws of Colonisation 1768

Anticipating that Captain Cook would discover the great southern land he was issued with special instructions to "with the consent of the natives take possession of convenient situations in the name of the King... or if you find the land uninhabited Take Possession for His Majesty". - See more at: http://australianmuseum.net.au/indigenous-australia-timeline-1500-to-1900#sthash.M6eWVM3p.dpuf

1770

Captain James Cook landed in Botany Bay, home of the Eora people, and claimed possession of the East Coast of Australia for Britain under the doctrine of 'terra nullius'

English Rules of Invasion/Colonisation 1700’s

Colonies rule

1. empty or ‘uncultivated’ lands called ‘terra nullius’ (Australia, Antarctica)

2. conquest (Ireland and Wales in the middle ages)

3. settled lands (New Zealand)

http://www.austlii.edu.au/au/journals/AJLH/2004/8.html

Timeline of early dispossession 1786 August 18 the British Government chose Botany Bay as a penal colony. 1788 18 January Captain Arthur Phillip entered Botany Bay. A total of nine ships sailed into Botany Bay over three days. Aboriginal people watched the arrival. 25 January Phillip sailed to Port Jackson and between 25 January and 6 February 1 000 officials, marines, dependents and convicts came ashore.

Resistance and conflict between Europeans and Aborigines begins almost immediately. 29 May the first conflict between the First Fleet arrivals and Aboriginal people takes place near Rushcutters Bay, Sydney. Two convicts are killed.

December, Arabanoo is the first Aboriginal person captured by Europeans. Captain Phillip estimates that there are 1 500 Aboriginal people living in the Sydney Region.

1789 April, smallpox decimates the Aboriginal population of Port Jackson, Botany Bay and Broken Bay. The disease spread inland and along the coast. The settlement spreads to Rose Hill, later called Parramatta.

November, Governor Phillip captures two Aboriginal men - Bennelong and Colebee. Colebee escapes but Bennelong is kept at Government House for five months. 1790 Bennelong and a boy named Yemmerrawanie are taken to England by Phillip. Bennelong meets George III. Yemmarrawanie dies in England. Bennelong returns to Australia in 1795.

September, Pemulwuy spears Phillip's gamekeeper, John McEntire, and Phillip orders the first punitive expedition. Pemulwuy and his son Tedbury led Aboriginal resistance in the Sydney area in a guerrilla campaign lasting several years. 1791 Time-expired convicts granted land around Parramatta. See more at: http://australianmuseum.net.au/indigenous-australia-timeline-1500-to-1900#sthash.M6eWVM3p.dpuf

Timeline of early dispossession 1805 Aboriginal people trying to defend their land, kill colonists. A Government order on 19

April directed Captain William Bligh to send soldiers "for their [colonists] protection against those uncivilised insurgents". - See more at: http://australianmuseum.net.au/indigenous-australia-

1813 Colonists, assisted by Aboriginal people, cross the Blue Mountains. Create new hostilities as they pass through Aboriginal lands.

1830 October beginning of the Black Wars in Tasmania. Governor Arthur tries unsuccessfully to drive all the remaining Aboriginal people in eastern Van Diemen's land on to the Tasman Peninsula. 2 200 men form a 'Black Line'. It cost 5000 pounds and only two Aboriginal people are caught - an old man and a young boy.

The treaty attempt 1835 John Batman attempts to make a 'treaty' with Aboriginal people for Port Phillip Bay, near present day Melbourne by 'buying' 243 000 hectares with 20 pairs of blankets, 30

tomahawks, various other articles and a yearly tribute from eight Aboriginal men . This is the only time colonists attempt to sign a treaty for land with Aboriginal owners.

This horrified the News South Wales colonial authorities and Governor Richard Bourke, who disallowed the deal on the grounds that the land belonged to the crown, not local aborigines.

See more at: http://australianmuseum.net.au/indigenous-australia-timeline-1500-to-1900#sthash.M6eWVM3p.dpuf

Britain acknowledgement 1836 A select committee of the British House of Commons said that Aboriginal people had a - 1837 "plain right and sacred right" to their land. The committee reports genocide is happening in the colonies.

See more at: http://australianmuseum.net.au/indigenous-australia-timeline-1500-to-1900#sthash.M6eWVM3p.dp

1843 A number of squatters abandon their stations because of continued resistance of Aboriginal people in defence of their land which includes attacks on properties.

1850- Aboriginal people are increasingly pushed off traditional lands and onto Reserves as 1960 European expansion and occupation of land increases.

22 August 1966 – 1975Australia’s first land claim at Wave Hill

Aboriginal stockmen of the Gurindji people and their families (200 people) walked off Wave Hill pastoral station, 600km south of Darwin in the Northern Territory, owned by a British aristocrat Lord Vestey.

Led by Vincent Lingiari, a community elder and head stockman at the station, they set up camp in the bed of Victoria River. The camp moved before the wet season of that year and in 1967 the Gurindji Aboriginal people settled some 30 kilometres from Wave Hill Station at Wattie Creek (Daguragu), in the heart of their traditional land, near a site of cultural significance. This was well supported by media headlines all over Australia

While the initial strike was about wages and living conditions it soon spread to include the more fundamental issue about their traditional lands. The Gurindji Aboriginal people were claiming that this land was morally theirs because their people “lived here from time immemorial and [their] culture, myths, dreaming and sacred places have been evolved in this land”. This was the first claim for traditional Aboriginal land in Australia.

While Vestey’s company was prepared to hand the land over, opposition to this unusual and new idea was very strong.

The strike went on for 9 years until Prime Minister Gough Whitlam visited the site of the strike and made history with a symbolic gesture.http://www.creativespirits.info/aboriginalculture/politics/aboriginal-people-strike-walk-off-at-wave-hill

Gove Land Rights Case 1971 Yirrkala bark petitions 1963 - the Yolgnu people from the settlement Yirrkala in north-east Arnhem Land (Northern Territory) presented the Australian Parliament with a bark petition, protesting to have their land and their rights returned.

Then after four years of trying to stop bauxite mining on the Gove Peninsula, the Yolngu people took the Federal Government, and the Nabalco Mining Company, to the Northern Territory Supreme Court.

The Yolngu claimed the Gove Peninsula mine was illegal because it was on their land and they hadn't approved it.

This was the first time aboriginal people had taken such court action.

In 1971, Justice Blackburn rejected their claim, stating that while Yolngu 'customary law' included rules about land ownership, it had no legal significance, and so Australian governments were not bound by it.

Prime Minister, William McMahon, responded, promising a policy statement on Aboriginal access to land. The statement, when it was finally released, disappointed many indigenous Australians and their supporters.

Aboriginal Tent Embassy Late on Australia Day 1972, four young Aboriginal men erected a beach umbrella on the lawns outside Parliament House in Canberra and put up a sign which read 'Aboriginal Embassy'. Over the following months, supporters of the embassy swelled to 2000. When the police violently dismantled the tents and television film crews captured the violence for the evening news, an outraged public expressed its disgust to the federal government.

Mabo 1982-1992 Mabo v Queensland [No 2] (1992) 175 CLR 1

In 1982 five Torres Strait Islanders, including Eddie (Koiki) Mabo, began legal proceedings to establish title for the Meriam people to Murray (Mer) Island.

The historic 1992 Mabo decision in the High Court rejected the doctrine of terra nullius, the notion that Australia did not belong to anyone at the time of European settlement. This rejection of terra nullius meant the Australian legal system recognised that Indigenous ownership of land may have continued after the British colonisation of Australia.

Indigenous ownership of land and waters is based on Indigenous laws, customs and traditions. When the High Court said that Australian law recognises 'native title', it meant that the law recognises the ongoing existence of these customs and traditions through which Indigenous people have a connection to their land. 'Native title' is not a new form of title created by the High Court but legal recognition of those rights that Aboriginal and Torres Strait Islander people have always had. They referred to the continued existence of Native title rights in Canada and the USA as other examples.

The High Court also confirmed that when Britain gained sovereignty over Australia, it had the ability to extinguish (cut) native title to land for example by allowing people to buy and sell the land.

Native title can also be recognised over water.

Native Title Act 1993• Set up the National Native Title Tribunal to hear Native Title claims.

•Clarified what extinguished (stopped) Native Title from existing, e.g. freehold ownership of land.

• Prime Minister Paul Keating continued to negotiate with Indigenous representatives on the draft Native Title Bill as well as very concerned members of the media and pastoralists.

Wik 1996 – Pastoral Leases The Wik Peoples v The State of Queensland & Others. The Thayorre People v The State of Queensland & Ors (1996) (native title)

The High Court said that native title can only be extinguished by a law or an act of the Government which shows clear and plain intention to extinguish native title. The laws creating pastoral leases in Queensland did not reveal an intention to extinguish title.

The Court found that Queensland pastoral leases had been created to meet the needs of the emerging pastoral industry. The rights and interests of a pastoral leaseholder did not mean the leaseholders had a right to exclusive possession of the land. Therefore, the granting of a pastoral lease did not necessarily extinguish native title. Native title could co-exist with the rights of the leaseholder.However, where there is a conflict in the exercise of those rights, the rights of pastoralists override any rights of the native title holders.

Government Response: “The 10 Point Plan”Native Title Amendment Act 1998 (Cth)

1. Any grants made between between 1/1/94 and 23/12/96 were validated

2. State governments can extinguish Native Title over crown lands for matters of 'national interest'

3. Lands providing public amenities are exempt from Native Title claims eg Parks

4. Mining and pastoral leases are allowed to co-exist with Native Title

5. Tribunal can create access to traditional lands rather than granting full Native Title

6. A registration test is imposed on all claimants

7. The right to claim Native Title in or around urban areas is removed

8. Government is permitted to manage land, water, and air issues in any site

9. Very strict time limits will be placed on all claims

10. Indigenous Land Use Agreements will be created to promote co-existence

The 1998 amendments cut across the spirit of the 1993 act; the legislation was no longer designed to redress historic inequalities. http://www.smh.com.au/federal-politics/political-opinion/the-10point-plan-that-undid-the-good-done-on-native-title-20110531-1feec.html

Coexistence – what does it mean?

Co-existence is about sharing the land or waters in a way that recognises everyone’s rights and interest in the area eg, native title rights to go onto the land or to hold ceremonies on it may coexist with the rights of a pastoral leaseholder to graze cattle on that same land.

Example

Devils Marbles (Karlu Karlu)

The Devils Marbles, a tourist attraction 100 kms south of Tennant Creek in Australia’s Northern Territory, were handed back to traditional owners on 28 October 2008.

The site was handed back 28 years after a native title claim had been lodged. The Ayleparrarntenhe Aboriginal Land Trust now holds the title to Karlu Karlu and immediately signed 99-year leases with the NT government to allow public access to the area.

Traditional Aboriginal owners consider Karlu Karlu as one of their most significant sacred sites

Indigenous Land Use Agreements •Today we have these where Native Title is proven to exist

•A binding agreement negotiated between people with an interest in the land – for example Native Title owners, and companies or people who have a lease over the land (usually mining or pastoral)

•Usually negotiated with the assistance of the National Native Title Tribunal

•Native Title Amendment Act (No. 1) 2010 (Cth)

Benefits of Native Title Evidence of ownership. It means a lot to Aboriginal people to be able to prove they belong to the land and the

land belongs to them.

Access to traditional land for hunting and cultural purposes such as ceremonies. Without native title such activities would be illegal and let Aboriginal people have a criminal conviction if they do them, which would prevent them from getting government jobs.

Renewed relationships & Strengthened Cultural Ties. Native title helps Indigenous groups to renew relationships with each other and strengthen their cultural ties with traditional land.

Protection. Native title protects the land which will be passed on to future generations along with the traditional laws and customs which govern it.

Business opportunities. Aboriginal people can establish businesses and create training and employment, giving them economic independence. They will also take a seat at any negotiation table alongside mining companies and pastoralists to have a say in developments on their land.

Creation of national parks. Many land use agreements reached along with native title establish new national parks where Aboriginal people work as rangers and guides.

Increased cultural sensitivity for management of significant sites and World Heritage area sites